It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

Paper Title

-- By JonathanWaisnor - 17 Feb 2010

Section I

Subsection A

Subsub 1

Subsection B

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Subsub 2

Section II

Subsection A

Subsection B

Idea 1

American society consists of three broadly defined socioeconomic groups. The first is the upper-class. These are Americans who have achieved such a level of wealth that they can guarantee themselves and their families security, not only for the duration of their lives, but for some generations afterward. The middle class is a group that, if they maintain their current standard of living, will have security for the rest of that individuals life, and may be able to leave some for their children. The lower-class has no security.

Security is a nebulous term that does not only include wealth, although wealth is a sizeable component. Security also includes opportunity (the ability for one and one's children to increase the amount of security they have), physical safety, membership in a stable community, participation in the dominant cultural institutions, and the option to adopt the values and morals of the dominant culture because your group has contributed in some way to that culture.

Traditionally, the upper-class have had almost full security. The lower-class, who greatly outnumber the upper-class, have had none. Historical examples of the lower class include Native Americans, convicts, impoverished people (both urban and rural), recent unskilled immigrants, and poor blacks in the era of Reconstruction. The middle-class, who outnumber even the poor, have had partial, but never full, security. The middle class cuts across racial and gender lines.

The three classes of rights that guarantee security are, in no order of preference, economic/physical protection, civil/political participation, and cultural/social input. Economic/physical protection means, among other things, safety from government-imposed violence or violence perpetrated because of a lack of effective government, providing one's family with a comfortable standard of living that includes non-essential items and access to good education to ensure the best possibility of continuing to be upper-class. Civil/political participation is the ability to donate to candidates, speak freely, assemble, vote, and become a member of civic organizations that increase one's political power. Culture/social input means having the values of your group influence the dominant values and morals of the wider culture.

Traditionally, the wealthy have controlled all three of these classes of rights. The rich continue to get richer, and even during the high-taxation years preceding Ronald Reagan were able to afford protection from seeing themselves or their families cast down into the economic mileu. Unless a member of the upper-class falls into an otherwise despised group, such as Communists, they will continue to participate in the political process if they so choose. Finally, the upper-class are largely responsible for creating two of the dominant mythical culture figures in modern American society, the American businessman (an extension of the frontiersman of old) and the nuclear family (with the individual role of husband/provider, mother/caretaker, and children so specifically defined) and these mythologies ultimately benefit the wealthy in terms of social stability, increased consumption, and a bias against active government.

The poor have none of these rights. For example, poor blacks during segregation could be beaten and killed at the whim of the majority, lived in abject poverty, had no input into the political system, and were vilified and negatively stereotyped by the dominant culture. Control is established by the upper-class, unconsciously, by offering the middle class a choice between classes of rights. That is to say, the middle-class will always face a choice between having some of the pie or none of it, without any consideration to whether they or the poor might be able to have it all. This system is created because it is in the best interests of the wealthy, as it increases their security in what is seen as a zero-sum game.

To continue with the Civil Rights movement analogy, middle-class blacks had some measure of economic protection, in that they had jobs, houses, sometimes even businesses. Within their communities, they had civic organizations and a culture and value system all their own. However, these existed outside of the dominant culture, and the expectation was that blacks would accept the cultural role created for them by whites. Like many groups, they were allowed to maintain their own separate spheres, as long as those spheres did not impact the dominant ones. If the middle-class blacks chose to strive for full rights, they would be risking what little they had (their economic and physical security). The leaders of the movement needed the middle-class blacks, who had community ties and organizations, time and money, and a veneer of respectability. Rosa Parks, a middle-class, married, upstanding woman, was chosen as the figurehead, and Claudette Colvin, a poor, undereducated, pregnant teenager, was not, because of the need to have someone that middle-class blacks could rally around. The movement succeeded when these middle-class blacks risked losing their physical/economic protection, after they were convinced that the "choice" being presented to them was inherently unjust.

Other marginalized groups, such as women, laborers, draftees, all have faced similar choices. Today, this choice is presented to people defaulting on their mortgages. These people are sacrificing their economic protection in order to continue to fit into the cultural definition, established by the wealthy, of the provider who owns his own home, successfully manages his "castle", and always pays his debts. The interesting role of the law in these situations speaks not to what the law protects, but where it does not extend. The question that it is not in the interests of the wealthy to ask is this: is it possible to use the law to fashion a society where all three groups, upper, middle, and lower class, have guarantees of these rights.

Idea 2

We are exposed to the law during our first year of law school, as a series of legal battles fought in appellate courts. We are given these battles in casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law he wants first-year students to learn. Although some cases warrant greater exposition by the casebook author, we are mostly given the majority opinions and dissents, with the facts or procedural history filtered through the pen of the opinion author. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow.

This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on something called legal reasoning- the written process the judge followed to reach his conclusions, as described in the text of the opinion. We dissect the opinions, sometimes line by line, and, although the professor may raise objections to specific points, generally believe that the conclusion, or holding, follows logically from the line of reasoning even if we do not agree. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues.

This way of thinking about the law is necessary in some sense- because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough. Law students must, learn legal reasoning as the basis for law because that is all law students are prepared to do once they become lawyers.

However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the losing side in a Constitutional law case could have avoided entirely the negative decision, or found a way to fight another battle- this time one where his chances of winning were greater. This might be acceptable, if law students were expected to go out into the profession and learn to fight battles as steps to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies in which they will only fight a never-ending series of battles for masters they do not choose. These companies are called law firms.

Wars are fought by lawyers (and people) on crusades. They are fought with considerations of money, power, history, values, and weapons involved. Some lawyers must meticulously plan their wars, because they know that the opposing side is better entrenched or has more expensive weapons and soldiers. Lawyers can be both generals and soldiers in these wars, or can be one or the other. A successful war, however, might involve other actors than lawyers. It might involve politicians, consultants, public relations, the media. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road.

Law firms have no interest in associates who can fight wars. Fighting wars is for lawyers with causes- and the law firm's cause is that of its client. Law firms enter the picture when war is on the horizon or already afoot, when one side needs David Boies to win a battle in an appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly.

But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for them- who fight for their cause, or at least that buying mercenaries who know how to fight battles isn't enough. The great cities of medieval Italy learned the hard way that mercenaries almost never came as advertised, exorted money, ran from fights they couldn't win, and sometimes stormed the very cities that hired them. When it became viable to train and equip professional armies, the mercenaries lost work or were relegated to work too dirty for the professional armies of citizen-soldiers.

This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective in the face of external pressure. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. Law students will then need to learn not only how to fight the battles, but how to fight the wars.

Most law students came to law school to fight wars, although, except for perhaps a few, they had very little experience in how to do this. They thought that law school would equip them with the tools and strategies to fight wars, which would include winning battles, and might even involve being a mercenary for a few years. They learn that unless they have a crusade picked out in their first-year of law school, they will be branded as mercenaries and won't be thought of in the same way as the members of that Holy Order.

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